IV. Identifying Mental
Disability in the Courtroom

It’s just because I’m sick…. If I had
that hearing again, I would like to explain to the judge [that] it’s not
because I’m a bad person. When I was on my medication, I wasn’t in
any trouble…. Sometimes it’s like the world is closing in on
me…. Everything I worked for, the judge just took it away.

[S]ince I have been classified as disabled I have been
struggling with these entities that work through external devices. They have
communication with me via an apparatus in outer space. They enter my mind when
they try to make a connection with the United States and in that sense they
invade my privacy. They use me as a guinea pig and they know how I’m
doing and when I’m doing it.

One of the primary reasons why mental disabilities matter in
the courtroom is because the impairments can be so severe that those who have
them do not understand what is happening to them, or what is at stake in the
hearings they must attend. For example, Human Rights Watch met people who did
not know their date or place of birth; were confused about why they were in
detention; and were unsure how long they had been in a detention facility.

For example, one woman was unable to understand a single
question asked of her.[54]
She stared into space during the interview, shook her head repeatedly, and
rocked nervously in her chair. The interview was eventually terminated because
it was not clear if she had granted consent. In another case, a non-citizen
explained his strong belief that the immigration court was directly linked to a
“company” that had allegedly stolen wages from him.[55]
Yet another man could not verbalize answers to many questions, or tell Human
Rights Watch what he said to the judge. He shook his head and looked blankly at
the researcher when asked if he knew what would happen when he was deported.[56]
Asked why he should stay in the US, Fernando C., an LPR from Mexico, said that
he had told the judge he should stay in the US because, “…I got
shot here in the US so I wasn’t going to go [to Mexico] with a bullet in
my head … I was shot here [points to chin] and here [points to forehead].
I think I must have died because I remember I saw children with wings.”[57]

Individuals with mental disabilities also risk making
statements in court and to immigration officers that are against their
interests, without the ability to understand or mitigate the consequences. For
example, Mamawa P., a refugee from Liberia, told Human Rights Watch that after
being abused by her roommate in the US, resulting in head trauma and losing her
job in Kentucky, she approached immigration officers and asked to be deported.
ICE officers took her into custody and sent her to a hospital for psychiatric
care for five weeks.[58]
According to Mamawa P.:

It was a mistake I made to go to immigration and ask to be
sent back to my country. Now that my frustration is going down, I don’t
want to go back … I’ve been in detention for four months and I
never committed any crime. It’s just because I told them my problems.[59]

Some people with mental disabilities may make compromised
decisions about deportation even when they have strong claims to remain in the
US—including by agreeing to deportation in order to avoid ongoing
detention. Such “voluntary” decisions to be deported may not be
reliable when someone has a significant mental disability, and are particularly
problematic when there is no lawyer.

“I’m thinking of just signing the deportation
order because asylum will take too long. I’m ready to sign the
deportation order because I want to get out,” said Leonardo D., a
non-citizen from Cuba who had been diagnosed with schizophrenia and was living
in a mental health care facility for five years prior to his arrest by ICE in
December 2009.[60]
Several detainees with mental disabilities told Human Rights Watch they would
sign “whatever” or take deportation just to get out of the
detention facility. In some cases these individuals did not appear to understand
that deportation meant leaving the US.

There are several documented cases in which a US citizen
with a mental disability has been deported.[61]
In 2000, Sharon McKnight, a US citizen with cognitive disabilities, was
arrested by immigration authorities returning to New York after visiting her
family in Jamaica and deported through expedited removal procedures when
immigration authorities suspected her passport was fraudulent.[62]
In May 2007, Pedro Guzman, a 29 year old US citizen with developmental
disabilities, was apprehended by ICE at a county jail in California where he
was serving a sentence for trespassing and deported to Mexico. Guzman was lost
in Mexico for almost three months before he was found and able to return to his
family in California.[63]
In December 2008, US citizen Mark Lyttle, diagnosed with bipolar disorder and
developmental disabilities, was deported to Mexico (and from there to Honduras
and then Guatemala.) It took four months for Lyttle to return to the US; ICE
officials maintain that Lyttle signed a statement indicating he was a Mexican
national.[64]
Human Rights Watch interviewed three individuals with then-unverified claims to
US citizenship. Two men, Michael A. and Steve S., both claimed to be US
citizens, and the government’s proof of alienage[65]
against each of them was uncertain and inconsistent.[66]
A third interviewee may have a valid claim for US citizenship according to his
attorneys.[67]

In addition, mental disability may undermine claims to
asylum in the United States, or to other relief available under the Convention
against Torture, which rely on the applicant providing “credible”
testimony to support claims to stay in the country.[68]
If the testimony is inconsistent, or not in accordance with current country
conditions, the court can find the testimony not credible and the asylum-seeker
will be denied asylum.[69]
Many individuals with mental disabilities may be unable to provide consistent
and credible testimony.

Many represented individuals interviewed for this report
were applying for relief from deportation under the Convention against Torture
on the basis they would face persecution by police and others because of their
mental disability; would not be able to receive necessary mental health
treatment; or would be forced into a psychiatric facility with abysmal and
dangerous conditions if deported to the country of origin. Human Rights Watch
documented three cases where an asylum officer found that a non-citizen with a
mental disability could not provide a credible and consistent account of his or
her fear of forcible return.[70]
For example, Cesar J., was unable to provide his own name, those of his
parents, or cite his place of birth, and frequently answered questions with
entirely unrelated responses.

Asylum officer: What are [your] parents name [sic]?

CJ: I don’t know ... I understand my mother was from
France and my father was from India. I did not know anything about them and I
went to New York. And 15 years later I met people who told me they were my
parents. And it was written down on the birth certificate, but it was not
accepted in Texas.

Asylum officer: Why didn’t you ever tell immigration
you were really born in Brownsville and had a different name?

CJ: Because I quit because a judge wanted to return me to
my sex as a woman and I got mad.

Asylum officer: So you had been a woman and the judge
wanted to return you to being a woman?

CJ: That was what the judge told me and all my life I had
been a man so I got mad. He told me that I was born a woman. And as a matter of
fact the [sic] wanted me to go live in Dallas, Texas, and I refused.

Asylum officer: Who wanted you to go live in Dallas, Texas?

CJ: My family gave me as a gift all the states within Texas,
but I did not want that.[71]

Cesar J. also recounted being the victim of gang rape and a
murder in Mexico, where he had previously lived: “They attempted to
change my blood. They came and killed me at once and I ended up being another
person,” he said. At his subsequent credible fear interview, Cesar said
his medication was causing visual hallucinations: “I see things at times
now, revelations and things like memories, but only sometimes.” The
asylum officer found Cesar’s testimony not credible with regard to past
mistreatment, but said Cesar could establish a reasonable possibility of future
persecution “on account of his being perceived to be a homosexual, due to
his being HIV+.”[72]
Despite this determination, which would require further court proceedings to
finally determine legal status, Cesar accepted voluntary departure to Mexico.[73]

In another case, Michael A. claimed to be a US citizen whose
extended family was killed in Nigeria. Asked by an asylum officer why he feared
deportation to Nigeria, Michael said he would be tortured: “I don’t
know why they want to torture me. I’m a rich man. I’m god. They
want to have me remove the plants from heaven to earth. Jay-Z and R-Kelly are
some of them.”[74]
At another point in the credible fear interview, Michael claimed to hear his
dead wife and President Obama speaking to him.[75]
The asylum officer wrote to reviewing authorities:

Applicant’s testimony was not credible because it was
implausible. His testimony was implausible because it was delusional. It should
be noted that applicant appears to suffer from psychosis. Therefore, this calls
into question the entire credibility of his claim. Moreover, even though
applicant testified that he suffers from no physical or mental conditions,
USCIS records indicate that he was on anti-psychotic medications as recently as
March 2009.[76]

The officer observed in a separate memorandum to the IJ and
DHS attorney that Michael was at risk of persecution and maltreatment on
account of his mental disabilities if returned to Nigeria and should be allowed
to present claims for relief to the immigration court.[77]
Despite the concerns raised by the asylum officer, an immigration court ordered
Michael A. deported to Nigeria in April 2010.[78]

Beyond the asylum context, the existence of a mental disability
is relevant to how a judge reviews the merits of a non-citizen’s claim
that he or she should be allowed to remain in the United States. For example, an
LPR or non-LPR applying for cancellation of removal in immigration court must
provide evidence about his or her “good moral character” and the
hardship that deportation would cause to his or her legal permanent resident or
US citizen family members.[79]
Although immigration judges cannot overturn a criminal conviction, the fact
that a non-citizen’s criminal history is related to a mental disability,
is relevant in considering a person’s character and prospects for
rehabilitation. As attorney Raha Jorjani explained:

In cases where judges have discretion, it should matter
that someone is mentally incapacitated where two of the elements [of “good
moral character”]—remorse and culpability—are affected by
their mental disability.[80]
Moreover, it should affect the judge’s view of the hardship that a person
will experience if returned to their country and forced to start a new life,
possibly without any mental health care.[81]

For some individuals with mental disabilities, collecting
and presenting relevant biographical and factual evidence may be impracticable
without support. For example, an LPR who is entitled to discretionary relief
from deportation must show at least five years lawful residence in the United
States, continuous residence for at least seven continuous years, and that he
or she has not committed a crime considered to be an aggravated felony under
immigration law.[82]

Identifying Disability
in Immigration Court

Immigration court can be an overwhelming experience,
irrespective of disability. Given the nature of the claims raised in
immigration proceedings, it is predictable that some individuals in immigration
court may have previous experiences with trauma, such as post-traumatic stress
syndrome (PTSD), which may even be triggered by the courtroom experience.[83]

For example, Alex K., an LPR and refugee from the former
Soviet Union with schizophrenia, broke down in court, began screaming that he
wanted to be deported, and was forcibly medicated in the courthouse. Alex’s
doctor, in court to testify on his behalf, told the judge:

Right now he’s in a very regressed state of mind. He’s
in the throes of a panic attack along with depression which makes him feel
horribly anxious…. And he is sitting in the room with his hands over his
head, he’s crying, his eyes are markedly bloodshot, which is typical of a
very progressed state, and I have to bear in mind that this is a man who is
abused when he was a young boy. And he is reacting as if the system is doing
this all over again, only it’s a different system and he just wants to
run and he feels totally hopeless, and he can’t see any point in going
on.[84]

Despite this stressful environment and the prevalence of
people with mental disabilities, immigration courts are not designed or
equipped to protect, recognize or accommodate the needs of vulnerable
individuals in proceedings.[85]

A number of factors, explored in greater detail below, contribute
to the difficulty of identifying disability in immigration court, including a
lack of obvious symptoms; reliance on self-identification; lack of records
documenting mental illness; and lack of training for judges and other court
officers when it comes to identifying and working with people who have mental
disabilities.

Lack of Obvious
Symptoms

Many mental disabilities may not be immediately apparent;
and even more recognizable forms of mental disability may not manifest symptoms
in court. As Attorney Christina Powers notes, “Unless they are actually
yelling at you or not participating, a person with mental illness won’t
be recognized.”[86]
As a result, judges may not recognize that an individual is struggling to
understand immigration court proceedings, or has a mental disability which
affects his or her comprehension.

Reliance on
Self-Identification

The immigration detention system and immigration courts rely
on individuals self-identifying if they have a mental disability. However, as
one psychiatrist observed, in many cases “[p]eople don’t know if
they are mentally ill or not; they are not going to be the best recorders of
their condition.”[87]
People with certain types of mental disabilities, or who have not been formally
diagnosed and received treatment for a mental disability, may not be able to
recognize, identify, and explain their disability. Human Rights Watch
interviewed some individuals with documented mental disabilities who denied
having a disability and/or resisted being defined as someone with a mental
disability.

For example, Marco C., an undocumented young man from El
Salvador who saw his family killed by gang members, told Human Rights Watch
that he did not suffer from any mental health difficulties or anxiety.[88]
However, his attorney later informed Human Rights Watch that Marco experienced
severe post-traumatic stress syndrome, including vivid nightmares and anxiety,
and could not provide a linear narrative to his attorneys.[89]
Javier F. from Mexico did not want to share his medical records with Human
Rights Watch “because if I do those records will say that I am crazy and
I do not want that because you are very intelligent….”[90]

Edgar S., a victim of gang violence in Honduras, told Human
Rights Watch that he saw a psychiatrist but had no mental health problems: “They
[ICE] sent me to a psychiatric center and gave me medicine so I wouldn’t
be able to defend myself. They are taking advantage of me … immigration
is making it look like I’m crazy. I’m not crazy.”[91]
Edgar’s medical files, which Human Rights Watch acquired through a
Freedom of Information Act (FOIA) request, said that at age 16, Edgar “could
only spell a few words such as ‘mama’ and his name,” was “in
the mentally deficient range” in math and word recognition, and presented
as “a young person who has been victimized most of his life.”[92]

Lack of Records

Many individuals with mental disabilities do not have a
recorded history of mental disability or documented history of treatment. Even where
records do exist, they may be difficult to trace, depending on whether they
followed the person from prison into detention and in transfers between
detention centers. As advocates and psychiatrists told Human Rights Watch,
immigration courts are more likely to recognize and accept that a person has a
mental disability if they see extensive documentation from community treatment,
hospitalization, or evidence from the person’s prison and criminal
record. One psychiatrist who has testified in immigration court said: “Often
the judge will say, ‘if there is a mental health problem, why aren’t
you going to treatment? Why do you just claim to have a mental health problem
here in court?’”[93]

Although many individuals with mental disabilities come into
immigration detention from the criminal justice system, many will not have a
recorded history of mental disability or documented history of treatment. Also,
where those records do exist, they may be difficult to access depending on
whether the records followed the person from prison into detention and in
transfers between detention centers.

Individuals with cognitive disabilities, which are not
associated with the disruptive behaviors associated with some mental
impairments, may not elicit the attention of ICE medical staff. As lawyer and
clinical professor Troy Elder noted, “For many, contact with the court
system might be the first opportunity for diagnosis.”[94]
Even individuals who are aware that they have a disability that affects their
functioning, understanding, or participation in daily activities may not
identify themselves to ICE or to the courts. Lionel C., an LPR from Jamaica
with an unspecified mental disability and slow affect, told Human Rights Watch,
“Sometimes I can’t remember things … it gets lost … I
have trouble understanding things but I’ve never asked to see a doctor
about that because they want money.”[95]
Pacifico G., an LPR from Mexico with schizophrenia who says he is in contact
with entities from outer space, told Human Rights Watch that he didn’t
seek medical help when he was homeless: “I spent years under the bridge
trying to figure out what type of system I was in contact with, trying to find
myself and find where my feet were.”[96]

While identifying non-citizens with mental disabilities may
in some instances be challenging, advocates repeatedly noted that ICE trial
attorneys do not raise the issue of the respondent’s mental disability even
where they have such records in the non-citizen’s file.[97]
John Pollock, who observed immigration court proceedings in Boston for the National
Lawyers Guild, recalled that in at least one case it was only after the judge remarked
that the respondent appeared to have a mental disability that the ICE attorney
revealed the respondent had indeed previously been found incompetent in a
criminal court.[98]

Lack of Training

A fourth difficulty when it comes to identifying mental
disability in immigration court is the lack of training for judges and other
court officers when it comes to identifying and working with people who have
mental disabilities. One immigration judge said that in the past two decades,
the Executive Office for Immigration Review (EOIR) has only organized two to
three trainings—including one in August 2009—for immigration judges
on recognizing people with mental disabilities.[99]
A psychiatrist observed that for people with PTSD, presenting testimony
requires a tricky “balancing act” because “if the person is
totally shut down, the judge may assume the person is apathetic. If the
respondent is sobbing on the stand, the judge accuses them of making a scene.”[100]

Even if a judge is trained to recognize a mental disability,
the proceedings can make identification difficult. The first time a person sees
a judge is at the master calendar hearing (the first hearing in immigration
proceedings). These hearings are often only a few minutes long and offer little
opportunity for judges to observe and question, or for the individuals
themselves to raise their disability and request assistance. The individuals
interviewed for this report generally said they were not asked questions at the
master calendar hearing.

In many cases, master calendar and individual hearings are
conducted by tele-video, with the individual in proceedings in a detention
center, while the attorney (if there is one), the judge, and DHS government
attorney are in a courtroom. There are frequent complaints about the quality of
the video equipment, and the consequent difficulties in understanding what is
being said. “On the TV, I can’t understand nothing [the judge] says
at all,” said Mike C., who has a diagnosed cognitive disability.[101]
Moreover, it may be difficult for a judge to recognize that a non-citizen has a
mental disability when he or she appears over video. An attorney in San Diego, California
observed that while video-conferencing was “commonly used for court
hearings” in the city, “for some individuals who suffer from mental
illnesses and experience auditory hallucinations, for example, this may not be
appropriate.”[102]

Stigma and its Legal
Consequences

When people know you have mental illness, people don’t
see you the same.

In some cases, the stigma of mental disability may prevent
individuals from self-identifying in a detention facility or immigration court.
Yuri S., a refugee from the former Soviet Union who later became an LPR, at
first didn’t tell his lawyer about the sexual assault he endured as a
prisoner of war in Afghanistan, and said that for years he had difficulty
recognizing his PTSD: “You don’t want to admit it when you have
this problem but then you have to.... I was having nightmares, flashbacks.... I
didn’t tell the judge about the PTSD. He’s not really interested.”[103]
Yuri’s attorney observed that while his client is “very high
functioning,” it was difficult for him to testify about his mental
disability:

[T]he very things that he needs to testify about are going
to exacerbate his mental illness because he has PTSD. There are biological
reasons [a desire not to experience stress or physical reactions to stress] for
which he would be suppressing issues that he might need assistance to express.…
There were a lot of things that he just didn’t want to relive and face in
the process. For a lot of people, left to themselves, they wouldn’t have
the will or the ability to face these things.[104]

Even where an individual has an attorney, he or she may be
reluctant to share intimate details of his or her life, traumatic experiences,
or mental health conditions that are a source of shame.

Psychologist Judy Eidelson noted that a central feature of
PTSD is avoiding reminders of the trauma experience, and as a result people
with PTSD have difficulty constructing a compelling case for relief:

In the application they often leave off the part of their
story that would best establish their claim. And it’s hard when you don’t
trust the authorities. Often it is late in the case when they are able to talk
about what happened, and the government accuses them of making it up.[105]

Attorneys Matthew Green and Jesse Evans-Schroeder told
Human Rights Watch that they did not know about the mental health problems or
sexual abuse suffered by Nat, a female client, until Evans-Schroeder, a female
attorney, joined the legal team. Even then Nat only discussed details of her
impairment and past experiences late in the relationship.[106]
“That’s the issue in working with traumatized clients—you don’t
always get the facts when it’s convenient,” said Green.[107]
Although Nat’s attorneys had a psychiatric evaluation completed and
introduced as new evidence, they met resistance from ICE trial attorneys in
getting continuances to collect and present these new claims. Even after
working with her attorneys for months, Nat was uncomfortable testifying in
court about traumatic events. However, her attorneys presented this evidence in
the record, and the judge granted relief.[108]

Individuals with mental disabilities may legitimately fear
punitive consequences if they reveal their mental disabilities to the
immigration court. Lawyer Carmen Chavez observed, “People might be afraid
to self-identify because they think it will affect their chances of staying
here.”[109]
Similarly, Dr. Eidelson observed, “A lot of women are afraid that their
psychological factors will be used against them—to have their kids taken
away, for example.”[110]

In another example, Jorge G., a 36-year-old LPR, originally
from Mexico, was diagnosed with severe cognitive disabilities.[111]
Jorge had lived in the United States since a young age, had LPR parents and
both US citizen and LPR siblings in California, and was facing deportation
based on convictions for driving without a license, drug possession and
violation of probation. Jorge G. proceeded without a lawyer in his immigration
hearings, and the immigration judge (IJ) never inquired into Jorge’s
competency or recognized that Jorge had a cognitive disability. In this case,
Jorge was fortunate to find an attorney, Delia Salvatierra, to represent him on
appeal, who was able to get him a psychiatric evaluation (his first evaluation
ever).

One of the central tensions in this case, Salvatierra
observed, was her client’s unwillingness to talk about his cognitive
disability, which had shaped his life but had never been officially diagnosed
until the mental health evaluation for immigration court: “He
didn’t want to tell the court about the issue that has hurt him his
entire life. The last thing he wants to tell the judge is that there is
something wrong with him, even though that is the one thing that might have
helped.”[112]

Indeed, there is some evidence to suggest that there is some
basis to fears of repercussions if people in immigration proceedings reveal
they have mental disabilities. For example, Human Rights Watch documented at
least two incidents where ICE raised a non-citizen’s disability to argue
for deportation. In the case of Edwin B., a refugee from Liberia, the
government affirmatively used evidence that Edwin had a mental disability to
prove he was not a credible witness in his hearing and relief should be denied
accordingly.[113]
In another case, Pacifico G., an LPR from Mexico with schizophrenia, admitted
in court that he heard voices, which sometimes told him to harm other people.
The trial attorney used this evidence to argue that Pacifico was dangerous and
should be denied relief, even though Pacifico has never attempted or committed
a violent crime, and testified that he would never act upon what the voices
told him.[114]
Pacifico told Human Rights Watch that his disability was used against him:

[T]he DA [sic] says that I am 100 percent individually
responsible for my actions. That I am completely accountable for what I do. He
made me sound like I was a murderer or made it look like I was a potential
murderer. That I could kill at any second…. The legal system exposes me
as if I am the one to blame, but I don’t think this is the fact. I did my
best for 17 years to be a person under control and they make it seem like I am
a person who cannot control myself. As if I am a threat to society.[115]

Where individuals are afraid that disclosing mental
disabilities will have repercussions for their legal claims, there is a
disincentive to report mental health needs and to seek medical attention while
in detention. Says attorney James Preis, “Sharing information is
important to get good services but there needs [sic] to be protections so that
information doesn’t get misused in violation of due process.”[116]

At present, there is no transparent system in place to
protect this medical information and separate its use for treatment purposes
from misuse in court. Since ICE oversees both the detention and prosecution of
non-citizens accused of immigration violations, there is a real danger that
medical information can be used against a detainee.

[61]Testimony
of Rachel E. Rosenbloom, Human Rights Fellow and Supervising Attorney, Center
for Human Rights and International Justice at Boston College, Before the
Subcommittee on Immigration, Citizenship, Refugees, Border Security, and
International Law, Committee on the Judiciary, United States House of
Representatives, Hearing on Problems with ICE Interrogation, Detention, and
Removal Procedures, February 13, 2008.

[69]Matter
of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997); According to the EOIR
Benchbook for Immigration Judges, “if the applicant’s testimony is
the primary basis for the CAT claim and it is found not to be credible, that
adverse credibility finding may provide a sufficient basis for denial of CAT
relief.” Department of Justice, Executive Office for Immigration Review,
Benchbook for Immigration Judges:
http://www.justice.gov/eoir/vll/benchbook/index.html (accessed April 20, 2010).

[79]8
U.S.C. Section 1229b. Although good moral character and hardship are supposedly
only applicable to non-permanent residents, immigration judges inevitably
incorporate both factors into assessing the claims of permanent residents.
Margot Mendelson, “Constructing America: Mythmaking in US Immigration
Courts,” Yale Law Journal, vol. 119 (2010). Moreover, Mendelson
points to the BIA decision in In re C.V.T., finding that factors such as
good character and hardship are applicable to the favorable exercise of
discretion for legal permanent residents. In re C.V.T., 22 I. & N.
Dec. 7, 11 (BIA 1998). The immigration judge’s role is to balance the
positive factors in favor of allowing a non-citizen to stay in the US with the
negative factors supporting deportation. See In Matter of C-V-T-, 22 I.
& N. Dec. 7,11 (BIA 1998); Matter of Marin, 16 I&N Dec. 581,
584-85 (BIA 1978).

[85]“Accommodations”
as used in this report refers forms of assistance and support given to persons
with disabilities to ensure their equal participation in court. For example,
Dr. Denise Berte suggested that accommodations for a person with a mental
disability in immigration court could include requiring judges to alter the
pacing of the questions, to take time to checkin periodically with the individual to make sure he or she is following
what is happening, to explain who all the persons in the courtroom are, and, if
a person has post-traumatic stress syndrome, consider removing guards and the
gavel from the courtroom. Human Rights Watch interview with Dr. Denise Berte,
Philadelphia, PA, February 15, 2010.

[112]Human
Rights Watch interview with Delia Salvatierra, Florence, AZ, January 7, 2010;
The Board of Immigration Appeals has since remanded the case to the IJ in light
of this new evidence. Board of Immigration Appeals, In re Jorge G. (pseudonym),
March 15, 2010, (“We find that a remand is appropriate so the Immigration
Judge can evaluate the respondent’s new evidence in the first
instance…”) (on file with Human Rights Watch).